There isn’t much reason to add to the excellent and engaging — but lengthy — debate on other blogs about a possible copyright infringement claim against the designer of a very popular poster of President Obama, which is based on a photo taken by an AP photographer.

My own view is that the poster is extremely different from the photo. That may mean there is no substantial similarity — although the actual image was copied, in a mechanical sense, which may mean under the literal terms of the Copyright Act that substantial similarity isn’t relevant because at some point in the production process the poster artist presumably made an exact duplicate.

Even so, however, I think that the degree of transformativeness points toward fair use. How sure am I? Give me a break, this is fair use; there are no sure things.

3 Responses to “Obama Poster Causes Copyright Flapdoodle”

A lot of people have mentioned substantial similarity, but I wonder whether substantial similarity is technically irrelevant. While access + substantial similarity is circumstantial evidence of copying, here we have direct evidence (even an admission) of copying. (I tend to think the intermediate copying would be a fair use under Sega v. Accolade, but I’m not making any bets either).

So, if we have direct evidence of copying, substantial similarity is out, and we are left with either no copying of protected elements (under abstraction tests like Nichols) or fair use of protected elements (or a combination). As I noted in another blog, I tend to think that the final product has nothing that is original from the photo, except maybe the angle of the photo. I think that’s a tough case to get over fair use, but I’m not making any bets here either.

That’s exactly what I was trying to say about substantial similarity, but you expressed it much better. I am dubious that a court would consider the intermediate “mechanical” copying here acceptable, which brings you to fair use, where the case is strong but not, I think, a slam dunk.

Fairey has sued, so barring a settlement we’ll have a ruling one way or the other. I’m not certain the lawsuit was such a great idea; I share some of Bill’s concerns about the ultimate strength of the fair use claim, and even if the claim were solid in this particular case, the courts get enough of these cases wrong (and wrong in such a way as to cause mischief for future fair use claims) that actually litigating the dispute seems like quite a gamble for all the rest of us.